People v. Armendariz

KAUS, P. J. On May 26, 1964, defendant pleaded guilty to an information charging him with one sale of heroin. (Health & Saf. Code, § 11501.) The information charged him with two prior narcotic offenses. On the People’s motion (Health & Saf. Code, § 11718) one of the two priors was stricken. The minimum sentence which defendant was to serve was thus reduced from 15 to 10 years. A probation report was ordered.

The probation report contained the following evaluation: “The defendant was cooperative with probation officer throughout the probation investigation. He is intelligent and articulate and seems sincere in his desire to overcome his narcotics problem. The difficulty in the present case, however, has to do with the fact that the defendant is presently on parole for narcotics and that his minimum sentence would appear to render him ineligible for the narcotics program. Probation officer believes that this is unfortunate because the defendant, it is felt, has the capacity to respond to the treatment program ...”

When the defendant appeared for sentencing on August 19, 1964, it appeared that the court had made extensive inquiries with the superintendent of the California Behabilitation Center at Corona and the chairman of the Adult Authority to determine whether or not defendant would be acceptable to the program. It appeared from the correspondence that the court’s correspondents thought that defendant would not be acceptable for various reasons. Among those reasons were the revocation of defendant’s parole from an earlier conviction in 1956 and his ineligibility under the provisions of section 3052 of the Welfare and Institutions Code in view of the 10-year minimum sentence commanded by section 11501 of the Health and Safety Code.

While the court still appeared to be sympathetic to the idea of instituting commitment proceedings, it felt that defendant’s status as a parole violator precluded the court from asking the district attorney to concur that defendant’s case was “unusual.”1

[35]It does not expressly appear from the proceedings of August 19, 1964, that the court felt that before such concurrence of the district attorney could be obtained, it would be necessary for the district attorney to make a motion under section 11718 of the Health and Safety Code2 so that, by striking the other prior narcotics conviction, the minimum term would be reduced to five years.

Defendant was then sentenced. The sentence was ordered to run concurrently “with any other time defendant may have to serve. ’ ’